We have covered the Hague Choice of Court Convention here before: the European Union has joined it, the United States are contemplating to do so, and this month, it came into force between the EU member states and Mexico. Here is what the Convention on Choice of Court Agreements is about: It seeks to ensure the effectiveness of choice of court agreements (also known as “forum selection clauses”) between parties to international civil and commercial transactions. However, the Choice of Court Convention is only one work stream of the Judgments Project undertaken by the Hague Conference since 1992: The Judgments Project originally wanted to tackle both the international jurisdiction of courts and the recognition and enforcement of judgments abroad.
When the initial efforts to developing a broad convention faced too much resistance, the project’s scope was reduced to international cases involving choice of court agreements. This led to the conclusion of the Choice of Court Convention (for more information see the specialized Choice of Court Section on the HCCH website). The second work stream, however, was not abandoned. In 2011, the HCCH’s Council on General Affairs and Policy established an Experts’ Group to assess the merits of resuming the Judgments Project. In 2012, a Working Group was set up to prepare proposals on the recognition and enforcement of judgments.
In February 2015, the Working Group* held its fourth meeting. Its report has now been published, together with a preliminary draft text that resulted from the meeting. The Working Group is pretty optimistic:
“The Working Group envisages that it will be able to bring the draft text to the point where it can recommend to Council, prior to its 2016 session, that the text be submitted to a Special Commission. This will require one, and possibly two, more meetings of the Group. In that regard, the Working Group envisages that, with Council’s approval, it would hold a further meeting in mid-2015 and, if a second meeting is required, a meeting in October 2015.”
Article 5, Refusal of Recognition or Enforcement, is in my opinion the central piece of the draft convention. It stipulates that circumstances in which the recognition or enforcement may be refused. First, this is the case if the documents instituting the proceedings were either not at all or not properly notified to the defendant. The draft then provides both for a fraud and a public policy exemption. Finally, recognition or enforcement may be denied of the judgment is inconsistent with a judgment between the same parties either given in the requested state or in another state but capable of recognition in the requested state.
As the Choice of Court Convention also provides for the recognition of judgments, you may wonder what the additional scope of a Judgments Convention would be: It would cover, broadly speaking, all judgments, irrespective of the grounds of jurisdiction in the state of origin. The Choice of Court Convention, on the other hand, only applies if the jurisdiction of the courts in the state of origin is based on a choice of court agreement. And this is the crux of the matter: the much wider scope of a Judgments Convention requires the contracting states to become (much more) comfortable with each other’s rules on jurisdiction.
*The participating members were Australia, Brazil, Canada, China, Cyprus, the European Union, Germany, India, Japan, the Republic of Korea, the Russian Federation, Spain, Switzerland, the U.K. and the U.S.